[Morton Rosenberg is a Specialist in American Public Law
American Law Division.]

ABSTRACT

This report provides a brief review and discussion of the historical and legal development of
the constitutionally-based prerogative of the President to maintain the confidentiality of
documents or other materials or information that reflect presidential decisionmaking and
deliberations. The evolving nature and scope of the presidential privilege is described and
discussed and recent court decisions are analyzed to determine how they illuminate current
interbranch information disputes.

Presidential claims of a right to preserve the confidentiality of information and
documents in the face of legislative demands have figured prominently, though
intermittently, in executive-congressional relations since at least 1792, when President
Washington discussed with his cabinet how to respond to a congressional inquiry into
the military debacle that befell General St. Clair's expedition. Few such interbranch
disputes over access to information have reached the courts for substantive resolution,
the vast majority achieving resolution through political negotiation and
accommodation. In fact, it was not until the Watergate-related lawsuits in the 1970's
seeking access to President Nixon's tapes that the existence of a presidential
confidentiality privilege was judicially established as a necessary derivative of the
President's status in our constitutional scheme of separated powers. Of the seven
court decisions involving interbranch information access disputes, three have involved
Congress and the Executive but only one of these resulted in a decision on the merits.
One other case, involving legislation granting custody of President Nixon's
presidential records to the Administrator of the General Services Administration, also
determined several pertinent executive privilege issues.

The Nixon and post-Watergate cases established the broad contours of the
presidential communications privilege. Under those precedents, the privilege, which
is constitutionally rooted, could be invoked by the President when asked to produce
documents or other materials or information that reflect presidential decisionmaking
and deliberations that he believes should remain confidential. If the President does so,
the materials become presumptively privileged. The privilege, however, is qualified,
not absolute, and can be overcome by an adequate showing of need. Finally, while
reviewing courts have expressed reluctance to balance executive privilege claims
against a congressional demand for information, they have acknowledged they will do
so if the political branches have tried in good faith but failed to reach an
accommodation.

However, until the District of Columbia Circuit's recent ruling in In re Sealed
Case, these judicial decisions had left important gaps in the law of presidential
privilege which have increasingly become focal points, if not the source, of
interbranch confrontations that has made their resolution more difficult. Among the
more significant issues left open included whether the President has to have actually
seen or been familiar with the disputed matter; whether the presidential privilege
encompasses documents and information developed by, or in the possession of,
officers and employees in the departments and agencies of the Executive Branch;
whether the privilege encompasses all communications with respect to which the
President may be interested or is it confined to presidential decisionmaking and, if so,
is it limited to any particular type of presidential decisionmaking; and precisely what
kind of demonstration of need must be shown to justify release of materials that
qualify for the privilege. The unanimous panel in In re Sealed Case authoritatively
addressed each of these issues in a manner that may have drastically altered the future
legal playing field in resolving such disputes....